How does the EB-5 Program work for married couples?
The EB-5 program permits the primary investor to attach their spouse and any unmarried children under the age of 21 as derivative beneficiaries. As such, between a married couple, only one individual is required to act as the primary investor and take the first step by making a qualifying investment and filing Form I-526.
Depending on the married couple’s unique situation, it may be worthwhile to decide which individual would be better suited to be the primary investor. For instance, the spouse with the greater income may be better suited as it would be easier to demonstrate lawful source of funds when filing Form I-526. Another factor to potentially consider is the country of chargeability. Because Mainland-China and Hong Kong are currently facing visa retrogression due to significant backlog, EB-5 investors from these countries are forced to contend with extensive delays in petition processing. If a prospective investor from China or Hong Kong has a spouse whose country of chargeability is different, it would be advantageous to make use of cross-chargeability.
Lawful Source of Funds
The evidence an EB-5 investor provides to prove the lawful origins of their investment capital is a critical aspect of the I-526 petition. United States Citizenship and Immigration Services (USCIS) will assess the documentation provided to ensure the United States is not enabling criminal activity through the EB-5 program.
The specific documentation needed for each case will depend on the EB-5 investor’s unique situation and the separate sources of their investment funds. It is always better to provide more documentation to prove lawful source of funds to ensure the highest chance of approval.
Cross-chargeability is most commonly used to preserve family units and allow family members to immigrate together. When the primary EB-5 investor’s country of chargeability is currently backlogged but the spouse’s country of chargeability has current visa availability, the EB-5 investor may cross-charge to the derivative spouse’s country in order to avoid facing the effects of retrogression.
Beyond the points discussed, there are various factors for a married couple to consider when applying for an EB-5 visa. It is highly recommended for any prospective investors to work with an immigration attorney to guide them through the EB-5 process.